Re: IBM Jikes license
bruce@pixar.com (Bruce Perens) writes:
> Eric said you were curious about the IBM Jikes license.
>
> Reports that Eric "blessed" the license are not accurate. I did "bless" an
> early draft, about 5 drafts ago. I am still looking at the current
> (released) version and will discuss it with the OSD board, and then we will
> make an official statement.
Ok. I just quoted LinuxToday - you might want to send a note to Dave
Whitinger <dave@linuxtoday.com> if you need that point clarified.
> The 60% thing will catch your eye. Note that that part is the _patent_
> license, not the software copyright license. Neither the DFSG nor the
> OSD currently say anything about patent licensing - I consider IBM's
> license an improvement over the usual case, which is no patent license
> at all. FYI, IBM claims there isn't any IBM-patentable technology currently
> in Jikes.
Subject to third party intellectual property claims, IBM grants to
YOU a non-exclusive, worldwide, royalty free license to make, use,
sell, offer to sell or import the Original Code for use in Licensed
Code under any patents licensable by IBM (but only to the extent such
grant would not require payment of royalties or other consideration
by IBM to others), provided that 1) such license shall only be under
claims of such patents necessarily infringed by Original Code; and 2)
YOUR Program includes more than 60% of the Original Code. No patent
license or other right is granted to YOU by IBM: to have the Original
Code made for YOU by a third party; with respect to any hardware or
software other than the Original Code, notwithstanding that such
hardware or software may incorporate the Original Code; or for the
combination of the Original Code with any other hardware or software,
or for the use of any such combination.
The language in that clause is practically undecipherable. Their
lawyer didn't strive for readability.
If the software contains no patented material, why even have the
clause?
My guess is that IBM has patented so much stuff that even they don't
know if their own software is covered by their own patents. In most
cases, it probably is. They've got the largest patent portfolio of
anybody - it's cost them millions to register all those patents, and
they're going to try to protect that at all costs. This is just
trying to cover their butt to prevent any embarrassments should they
decide to sue somebody else over one of their patents (which might
incidentally also apply to Jikes).
IBM doesn't want to dilute their patent portfolio, but they also don't
want to catch Jikes users in the crossfire. That's commendable, I
think.
However, the addition of the 60% rule amounts to the withdrawal of
IBM's patent protection from certain uses of the code. It reads like
a threat. On paper, at least, it means that IBM could potentially sue
somebody who just clips some code and doesn't read the license
carefully (because it was in Debian's main distribution).
But I guess you do have a point - anybody is free to include the full
source of Jikes with any software they write, so they don't have to
give up the patent protection. It's basically a variant on the patch
excemption scheme which nobody likes.
So I withdraw my claim that it isn't DFSG-free.
It's still really ugly, though. There must be some better way for IBM
to protect it's patent portfolio, and still be able to release open
source stuff.
It would be easier for IBM if they crafted their license to use a
copyleft, then they easily could grant rights to use their patents -
without diluting their patent portfolio when it comes time to sue a
proprietary user.
But in this case, they want an open source license which can be used
in proprietary products (ala BSD). Anybody they threaten to sue over
a patent which might also apply to Jikes is now going to have an
"out". The threatened party can avoid the lawsuit by including 60% of
Jikes in their product.. So IBM is actually diluting their patent
portfolio with this sort of legal language. If they left the language
out, it would have less of a diluting effect, so why include it in the
first place?
> Sengan, myself, and a few others have been working on this for months.
> There are some people at IBM who are really into making _more_ software
> Open Source. Please be nice to them.
I haven't discussed this outside of debian-legal, you and ESR, and
Dave Whitinger (who sent it to me in the first place).
My initial read of the license set off alarm bells, but I now see
where it's coming from.
Cheers,
- Jim
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